McGowan v. Hoffman, KCD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSWOFFORD
Citation609 S.W.2d 160
PartiesMargie McGOWAN, Respondent, v. Gerald C. HOFFMAN, Appellant. Mary F. BAUGH, Respondent, v. Gerald C. HOFFMAN, Appellant. 30104.
Docket NumberNo. KCD,KCD
Decision Date03 November 1980

Page 160

609 S.W.2d 160
Margie McGOWAN, Respondent,
v.
Gerald C. HOFFMAN, Appellant.
Mary F. BAUGH, Respondent,
v.
Gerald C. HOFFMAN, Appellant.
No. KCD 30104.
Missouri Court of Appeals, Western District.
Nov. 3, 1980.
Motion for Rehearing and/or Transfer to Supreme Court Denied
Dec. 2, 1980.
Application to Transfer Denied Jan. 13, 1981.

Page 161

Thomas A. Sweeny, John M. Klamann, Popham, Conway, Sweeny, Fremont & Bundschu, P. C., Kansas City, for appellant.

Arthur H. Stoup, Stewart M. Stein, Stoup & Bohm, Kansas City, for respondents.

Before SHANGLER, P. J., and SWOFFORD and CLARK, JJ.

SWOFFORD, Judge.

This appeal arises from actions for damages for personal injuries alleged to have been sustained by the plaintiffs in a "rear end" automobile collision which occurred on September 4, 1973, between an automobile occupied by the plaintiffs (McGowan riding as a passenger, and Baugh, the driver) and an automobile operated by the appellant, Hoffman. The cases were consolidated for trial in the court below. The consolidated case was tried before a jury and resulted in separate verdicts in favor of McGowan in the sum of $27,500.00, and in favor of Baugh in the amount of $17,000.00. After Hoffman's unavailing motion for directed verdict and for a new trial, he timely appealed to this Court.

The facts as to negligence and liability were not in substantial dispute and, considered in a light most favorable to support the judgments, may be briefly stated. Just before the collision, Baugh was driving her Pontiac automobile with McGowan riding as a passenger in a southerly direction on Charlotte Street in Kansas City, Missouri near its intersection with Truman Road. At that location Charlotte carries only southbound traffic and intersects Truman Road, which carries both eastbound and westbound traffic, at approximately right angles. The Charlotte Street and Truman Road intersection is controlled by traffic signals which required the Baugh automobile to stop at the intersection. Several seconds after coming to a stop, the Baugh automobile was struck from the rear by Hoffman's Ford automobile. The force of this impact knocked the Baugh vehicle forward about 21/2 car lengths from its stopped position. The Ford was being driven at the time by Hoffman and at the scene, it was

Page 162

observed that his speech was slurred and somewhat incoherent, there was a strong odor of alcohol about the Ford, and Hoffman; he refused to show his driver's license to Baugh; he moved his car stating he wanted to park it in front of the Baugh automobile; he then left the scene of the accident, almost hit a lamp post and "zigzagged" away "fast" down Charlotte before the police arrived. However, McGowan had taken down his car license number and he was later contacted by the police and admitted his involvement in the collision, but stated to Officer Pringle of the Hit-and-Run Unit of the police department that he had suffered head and internal injuries. The front end of his Ford was damaged, but he did not recall "what had happened." He later entered a guilty plea to a careless driving charge. He did not testify at the trial and, in fact, no evidence of any kind was offered by the defense.

Baugh testified that she observed no lights on the Ford either before the collision or as it was driven away from the scene, although it was dark at the time of the collision. Both McGowan and Baugh sustained personal injuries, which will be discussed hereafter.

The appellant raises three points on this appeal, which may be thus summarized: (I) The court erred in giving Instruction No. 7 because a separate finding of injury as to each plaintiff was required, and separate damage instructions should have been given; (II) The court erred in failing to grant a new trial or order a remittitur because the verdicts are against the weight of the evidence and are excessive; and (III) That the court erred in failing to grant a new trial because the verdicts are so excessive as to indicate bias and prejudice on the part of the jury.

Directing attention to Point I, the Instruction No. 7 complained of is a damage instruction which reads:

"INSTRUCTION NO. 7

If you find the issues in favor of the plaintiffs, then you must award the plaintiffs such sum as you believe will fairly and justly compensate the plaintiffs for any damages you believe they sustained and are reasonably certain to sustain in the future as a direct result of the occurrence mentioned in evidence.

MAI 4.01" (Emphasis supplied)

The appellant argues that this instruction misled and misdirected the jury and compelled them to conclude that they must find and return verdicts for neither of the plaintiffs or both of them, and could not return a verdict for one and against the other. The appellant cites several decisions and an MAI Committee Comment which is supportive of the view that where there is a joint action by plaintiffs whose claims are governed either under the law or the facts in a given case by different measure of damages, that two separate damage instructions should be submitted. Appellant asserts that the failure to do so in this case constituted reversible error.

In the argument portion of his brief under Point I, the appellant states that this error was further compounded by a mistake in the burden of proof Instruction No. 2 because of the use of the term "claim" instead of "claims" and constituted obvious error which would further cause the jury to believe that "they either had to find for both of the plaintiffs or for neither of the plaintiffs". This alleged error of mistake in Instruction No. 2, it is to be noted, is not urged as an assignment of error in appellant's "Points Relied On" as required by Rule 84.04(d) V.A.M.R., but the argument has been noted.

The respondents answer Point I by the argument that to give two separate damage instructions in this case "would be an exercise in futility, since the two instructions would be needlessly identical" and would confuse rather than instruct a lay jury. This argument is apparently based upon the premise that the measure of damages as to each plaintiff is identical. Further, the respondents state that their counsel has found no reference to or requirement for such duplicate instructions under the facts in this case and thus, apparently, in uncertain terms asserts that no violation of the mandate of MAI is present.

Page 163

It is apparent that the plaintiffs below modeled their Instruction No. 7 on the MAI 4.01 approved at the time this case was tried for a single plaintiff in a personal injury damage action. MAI 4.01 was modified in the case at bar by changing the singular submission "plaintiff" to "plaintiffs" and the singular submission "he" to "they". The term "such sum" as used in MAI 4.01 was retained. This modification of MAI 4.01 is the basis for the position of appellant that it was a violation of the MAI mandate and constituted presumptive error, Rule 70.02(c) V.A.M.R. Some support is found (at least by analogy) in the case of Kennedy v. Tallent, 492 S.W.2d 33, 37 (Mo.App.1973). Kennedy involved an automobile collision in which a wife and a child were injured. They and the husband-father joined in a multi-count suit as plaintiffs. The wife sued for damages for her personal injuries, as did the child for her injuries. The wife-mother and husband-father sued for damages for property damage, business losses, medical expenses for daughter, and the husband's loss of his wife's consortium. Five separate damage instructions were submitted to the jury, which submission was approved on appeal, the court stating, l.c. 37(4):

"All the claims for personal injury had elements in common, but each plaintiff was required to show individual, distinct injury as a prerequisite to the recovery of any sum as damages for personal injury."

The Kennedy court also cited the Committee Comment to MAI 35.05, an illustrative set of instructions for the situation involving personal injury and a separate consortium claim, wherein at page 407, it is stated:

"While there is an unfortunate degree of duplication in the two damage instructions, it would not be proper to combine them. The jury might find for the wife and also find that the husband had not been damaged as a result of the occurrence. To imply that injury to the wife meant injury to the husband would be error." (Emphasis added)

The Kennedy case is distinguishable factually from the case at bar in that there, the court approved the use of multiple damage instructions, and Kennedy involved claims each calling into play different legal measures of damage. Furthermore, the part of the opinion in Kennedy to which reference is above made was dicta.

Even assuming that Instruction No. 7 herein violates the mandate or spirit of MAI as asserted by the appellant, the duty of this Court on this appeal is much broader in scope than to peremptorily so conclude. This Court's review here is defined as to scope by Rule 70.02(c) V.A.M.R., which provides:

"(c) Violation of Rule-Effect. The giving of an instruction in violation of the provisions of this Rule shall constitute error, its prejudicial effect to be judicially determined. * * * " (Emphasis added)

Even if the initial conclusion is reached that error has occurred in the giving of Instruction No. 7, the duties of this Court in this case are not ended.

The Supreme Court of this state with laudable intent and worthy and efficient aspiration adopted MAI and ruled so as to enforce upon the bench and bar a very strict code of restriction by and compliance with its mandatory use, all of which has effected a vast savings in judicial time and taxpayers' money. But the gate of restriction and compliance must in the interest of fundamental justice be left somewhat ajar. Thus, from the consistent and binding decisional law, since the adoption of MAI and Rule...

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